Chappell v. Morgan et al
Filing
53
REPORT AND RECOMMENDATION and ORDER - The Magistrate Judge RECOMMENDS that 31 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order be DENIED, and 41 MOTION for Judgment on the Pleadings be GRANTED. Objections to R&R due b y 3/14/2016. The following motion is DENIED: 47 MOTION to Amend/Correct 3 Complaint, 25 Amended Complaint. The following motions are DENIED AS MOOT: 14 MOTION for Service of Summons and Complaint; 15 MOTION for Protection Cust ody Immediately; 23 MOTION for Protection and Protection of Evidence; 24 MOTION to Appoint Counsel; 30 MOTION for Copy of Amended Complaint; 42 MOTION to Stay Discovery; 45 MOTION to Compel. Signed by Magistrate Judg e Terence P. Kemp on 2/25/2016. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified by correcting wording of 41 Motion (changed from Denied to Granted) on 2/25/2016 (mas).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Ronald Chappell,
:
Plaintiff,
:
:
v.
Donald Morgan, et al.,
Case No. 2:15-cv-1110
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
:
Defendants.
:
REPORT AND RECOMMENDATION
AND ORDER
Plaintiff Ronald Chappell, currently a prisoner at the
Southern Ohio Correctional Facility, filed this action under 42
U.S.C. §1983 arising from his transfer to that facility from the
Lorain Correctional Institution.
Currently before the Court are
several pending motions, including a motion for judgment on the
pleadings filed by the two named defendants, former SOCF Warden
Donald Morgan and Chief Brian Wittrup of the Ohio Department of
Rehabilitation and Correction Bureau of Classification, and Mr.
Chappell’s motions for a preliminary injunction and to amend.
For the following reasons, the Court will recommend that the
motion for judgment on the pleadings be granted and that the
motion for a preliminary injunction be denied.
deny the motion to amend.
The Court will
Further, the Court will resolve all of
the other pending motions as set forth below.
I.
Background
Mr. Chappell filed his complaint on April 3, 2015, alleging,
in part, violations of his Eighth Amendment right to be free from
cruel and unusual punishment.
June 26, 2015.
Defendants filed their answer on
On July 10, 2015, Mr. Chappell filed an amended
complaint containing the following allegations.
On October 19, 2012, Mr. Chappell was sentenced to serve
five years in the Lorain Correctional Institution, a Level 3
institution.
On December 2, 2013, he was transferred to SOCF, a
Level 4 prison.
Since arriving at SOCF, Mr. Chappell has been
“attacked, threatened, tortured by staff inmates” and has “been
attacked sexually.”
to serve
Mr. Chappell asserts that his being required
his sentence at an institution other than the one to
which he was sentenced, and at a higher security level, is a
violation of his Eighth Amendment rights.
Mr. Chappell names the
defendants in both their official and individual capacities and
makes the following specific allegations against them, restated
here verbatim:
Defendant Warden violated my 8th, 14th, 5th amend.
rights by accepting me at this prison and allowing my
execution of sentence for case 12CR111 to continue at
this prison. Him violating my Const. rights subjected
and caused me to be subjected to the deprivation of the
mentioned Const. rights. Showing deliberate, reckless,
calloused indifference to the deprivations by not
correcting it once it was brought to his attention and
by accepting and continuing the deprivation caused me
to suffer and endure severe physical injury, severe
pain and suffering, sever emotional distress, and
torture all of which were incessant. All of the
mentioned above claims violated my right to be free
from cruel and unusual punishment being inflicted and
deprived me of my right to equal protection of the laws
and due process of law which are secured by the 8th ,
14th, 5th amend of US Const.
Defendant Chief of Classification Bureau deprived me of
the mentioned const. Rights by approving the transfer
and transferring me and refusing to correct the
deprivation once it was brought to his attention. The
actions and deliberate, reckless, calloused
indifference to the deprivation once it was brought to
his attention. The actions and deliberate, reckless,
calloused indifference to the deprivations caused me to
endure sever physical injury, sever pain and suffering,
sever emotional distress and torture all of which are
incessant.
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Additional pending motions include Mr. Chappell’s motion for
a preliminary injunction and a motion for leave to amend the
complaint.
In his motion for a preliminary injunction, Mr.
Chappell makes generalized allegations of torture and the denial
of medical care similar to those in the amended complaint.
He
requests, as relief, to be transferred back to the Lorain
Correctional Institution.
Through his motion for leave to amend,
Mr. Chappell seeks to incorporate a section from his original
complaint into his amended complaint.
II.
Motion for Judgment on the Pleadings
Defendants have moved for judgment on the pleadings as to
both Mr. Chappell’s original and amended complaints.
In their
motion, defendants assert that they are entitled to Eleventh
Amendment immunity for any claim for money damages against them
in their official capacities.
Further, they contend that any
claim for injunctive relief made against them in their official
capacities relates only to past violations and is, therefore,
subject to dismissal.
With respect to the claims directed to
them in their personal capacities, defendants make two arguments:
that Mr. Chappell’s complaint fails to meet minimal pleading
standards, and that they cannot be held personally liable under a
respondeat superior theory.
In his response, Mr. Chappell contends that, with respect to
his claims directed to defendants in their official capacities,
Ohio has waived its immunity from suit and his request for
injunctive relief is “for the deprivation of my rights and the
continuing deprivation of my rights.”
With respect to the issue
of minimal pleading standards, Mr. Chappell asserts that “[m]ore
specific facts can and will be provided when I am provided with
the discovery that I request.”
Finally, he argues that his
complaint alleges the defendants’ personal involvement.
With
respect to Mr. Morgan, Mr. Chappell states “[d]efendant Donald
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Morgan accepted me at SOCF and showed his deliberate, reckless,
calloused indifference to my deprivations and safety and medical
needs by not correcting them and ceasing them when made aware and
allowing the stuff to continue.”
With respect to Mr. Wittrup,
Mr. Chappell asserts “Defendant Brian Wittrup approved the
transfer and security level increase for illegitimate reasons and
refused to correct it when I sent my appeal letter for it.”
III. Legal Standard
A motion for judgment on the pleadings filed under
Fed.R.Civ.P. 12(c) attacks the sufficiency of the pleadings and
is evaluated under the same standard as a motion to dismiss.
Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th
Cir.1979).
In ruling upon such motion, the Court must accept as
true all well- pleaded material allegations of the pleadings of
the opposing party, and the motion may be granted only if the
moving party is nevertheless clearly entitled to judgment.
Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 479 F.2d 478, 480 (6th Cir. 1973).
The same rules which
apply to judging the sufficiency of the pleadings apply to a Rule
12(c) motion as to a motion filed under Rule 12(b)(6); that is,
the Court must separate factual allegations from legal
conclusions, and may consider as true only those factual
allegations which meet a threshold test for plausibility.
See,
e.g., Tucker v. Middleburg-Legacy Place, 539 F.3d 545 (6th Cir.
2008), citing, inter alia, Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007).
It is with these standards in mind that the
motion for judgment on the pleadings must be decided.
IV.
Analysis
Initially, the Court notes that the operative complaint in
this case is Mr. Chappell’s amended complaint.
As such, it
contains all of Mr. Chappell’s claims against the defendants, and
the prior complaint has no legal impact.
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Consequently, for
purposes of ruling on the motion for judgment on the pleadings,
the Court will limit its consideration to the allegations of the
amended complaint.
The focus of Mr. Chappell’s amended complaint appears to be
his desire to be transferred back to the Lorain Correctional
Institution.
He contends that there was no reason to transfer
him from that prison to SOCF and that SOCF is a higher security
level prison.
In further support of his request for a transfer,
back to Lorain, he contends that he has been subject to physical
attacks since his transfer to SOCF.
With respect to Mr. Chappell’s claim for damages against the
defendants in their official capacities, defendants are correct
that they are entitled to Eleventh Amendment immunity.
The
Eleventh Amendment to the United States Constitution bars suits
against either a state or agencies of a state by citizens of that
state.
Edelman v. Jordan, 415 U.S. 651 (1974).
Under certain
circumstances, a suit against an individual state official may
nonetheless be deemed to be a suit against the state and
therefore barred by the Eleventh Amendment.
The primary test for
determining whether the state is the real party in interest in a
suit is whether the source of any funds from which a damage award
would be paid would be the state treasury.
Edelman, supra.
Suits against state officials in their official capacities are
deemed to be suits against the state, so that a damage award
would run against the state treasury, exactly the relief barred
by the Eleventh Amendment.
(1985).
Kentucky v. Graham, 473 U.S. 159
Additionally, if an individual is alleged to have only
vicarious liability as a result of his official position, any
damage award made (if one were permissible) would necessarily be
against the office rather than the officeholder and therefore be
an award against the state.
See Ford Motor Co. v. Department of
the Treasury, 323 U.S. 459 (1945); see also Hall v. Medical
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College of Ohio, 742 F.2d 299 (6th Cir. 1984), cert. denied 469
U.S. 1113 (1985).
When a suit is barred by the Eleventh
Amendment, the Court lacks jurisdiction over it and it must be
dismissed without prejudice.
Cf. Gwinn Area Comm. Schools v.
State of Michigan, 741 F.2d 840, 846-47 (6th Cir. 1984).
Consequently, Mr. Chappell’s claims for monetary relief against
defendants in their official capacities must be dismissed under
the Eleventh Amendment.
To the extent that Mr. Chappell is contending that
defendants are liable in their personal capacities or that he is
entitled to injunctive relief because his transfer, by itself,
violated his constitutional rights, he cannot succeed.
It is
well-settled that inmates have no right to be housed in a
particular institution or be held in a specific security
classification.
Harbin-Rey v. Rutter, 420 F.3d 571, 576, 577
(6th Cir. 2005), citing Moody v. Daggett, 429 U.S. 78, 88 n.9
(1976).
Mr. Chappell also asserts, however, that his Eighth
Amendment rights have been violated following his transfer.
Certainly, if the consequence of being transferred to a different
institution is that the prisoner is subjected to cruel and
unusual punishment at that institution, the prisoner may have a
claim for an Eighth Amendment violation which is independent of
whether the transfer was constitutional.
Mr. Chappell’s claims
on this score are subject to dismissal, however, because he has
pleaded no facts beyond conclusory allegations or legal
conclusions.
In order to survive a motion to dismiss or a motion for
judgment on the pleadings, a complaint must contain factual
allegations sufficient to “raise the claim above the speculative
level.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007).
Conclusory allegations without specific facts do not
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state a claim under §1983.
Id.; see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements do not
suffice”).
Here, Mr. Chappell alleges only a general pattern of
assaultive behavior on the part of others at SOCF.
His complaint
does not describe a single instance of assault, does not indicate
whether all of these assaults were committed by other inmates or
by guards, does not say when they occurred, does not explain how,
if at all, he was injured, and does not provide anything other
than the most general assertions about what has happened to him.
This lack of specificity is especially important if, as the
complaint seems to suggest, most of the behavior about which Mr.
Chappell complains has been engaged in by other inmates.
No
prison official, including a first-level corrections officer
(which is not the position held by either of the named
defendants), is liable when one inmate attacks another unless
certain circumstances are present.
Those generally include
either an actual awareness that conditions at a prison create a
substantial risk that violence will occur, or knowledge of a
specific threat to the inmate in question, coupled with the
failure to take steps to avert an attack.
See generally Rider v.
Louw, 957 F.Supp. 983, 985-86 (E.D. Mich. 1997), citing Farmer v.
Brennan, 511 U.S. 825, 834-37 (1994).
in the complaint.
No such allegations appear
Although Mr. Chappell argues, in his response,
that he can provide more specifics about his claims after he
receives discovery, one of the purposes of the pleading rules set
forth in cases like Twombly and Iqbal is to prevent a party from
asserting conclusory claims and then subjecting the defendants to
the expense of discovery.
See, e.g., Iqbal, at 678-79 (“Rule 8
marks a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock the
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doors of discovery for a plaintiff armed with nothing more than
conclusions”).
Moreover, as the alleged victim of these attacks,
Mr. Chappell should have been able to provide the type of detail
in his complaint necessary to survive a motion to dismiss on
these grounds.
There is a second, related reason why his complaint against
these two specific defendants does not state a claim upon which
relief can be granted.
Allegations of direct involvement in
constitutional deprivations, rather than attempts to impose
liability by virtue of the doctrine of respondeat superior, are
necessary in order to hold an individual defendant liable under
§1983.
(1978).
Monell v. Department of Social Services, 436 U.S. 658
Although there are other legal claims that can properly
be asserted against a supervisor simply because someone under his
or her supervision may have committed a legal wrong, liability
for constitutional deprivations under 42 U.S.C. §1983 cannot rest
on such a claim.
Consequently, unless the plaintiff's complaint
affirmatively pleads the personal involvement of a defendant in
the allegedly unconstitutional action about which the plaintiff
is complaining, the complaint fails to state a claim against that
defendant and dismissal is warranted.
See also Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984).
This rule holds true
even if the supervisor has actual knowledge of the constitutional
violation as long as the supervisor did not actually participate
in or encourage the wrongful behavior.
See Shehee v. Luttrell,
199 F.3d 295, 300 (6th Cir. 1999) (prison officials cannot be
held liable under §1983 for failing to respond to grievances
which alert them of unconstitutional actions); see also Stewart
v. Taft, 235 F.Supp.2d 763, 767 (N.D. Ohio 2002) (“supervisory
liability under §1983 cannot attach where the allegation of
liability is based upon a mere failure to act”).
It is clear that Mr. Chappell does not allege that he was
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directly assaulted by either the former SOCF Warden or by Mr.
Wittrup, who works in the central office of ODRC in Columbus.
He
also does not allege that either of them was aware, in advance,
that any specific inmate or guard intended to harm him.
Rather,
he claims that after he alerted each of them to the fact that he
was being attacked or assaulted at SOCF - again, without
providing any details as to what he told them or when - they
allowed the situation to continue.
To the extent that he claims
they are liable because they failed to answer his grievances
satisfactorily, that is not the kind of direct personal
involvement in a constitutional violation that can lead to
liability under §1983.
Alternatively, to the extent that he
claims they knew that by keeping him at SOCF he was going to get
attacked or assaulted, he has not given the Court any facts in
his complaint from which that claim can be evaluated.
Any inmate
could make the general types of claims contained in Mr.
Chappell’s complaint and ask for a transfer; only if there are
specific facts to back up the claims can the Court allow the case
to proceed against supervisory officials like Mr. Morgan or Mr.
Wittrup, and there are none here.
For these reasons, the Court
will recommend that the motion for judgment on the pleadings be
granted.
Mr. Chappell has also moved for preliminary injunctive
relief.
One of the factors which justifies the grant of an
injunction is a likelihood of success on the merits, and that is
often the most important consideration.
See generally Workman v.
Bredesen, 486 F.3d 896, 905 (6th Cir. 2007).
The Court’s
discussion of the motion for judgment on the pleadings shows that
it is not likely that Mr. Chappell will succeed on the merits of
his claims.
Accordingly, Mr. Chappell has no likelihood of
success on the merits, and the Court will recommend that the
motion for preliminary injunction be denied as well.
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V.
The Motion for Leave to Amend
Through this motion, Mr. Chappell seeks a second amendment
to add paragraph 2a of his original complaint as paragraph 13a to
his current complaint.
The proposed amendment, paragraph 2a of
his original complaint, states:
Since arriving at this place I have been shown
deliberate indifference to the torture, abuses,
threats, attacks and denial of necessary medical care
which are all part of the subjection to cruel and
unusual punishment being inflicted against me at this
place. I repeatedly asked for protective control from
the staff and inmates committing these acts against me
and the respondents repeatedly refused to give me
protective control and continued to allow these
tortures, abuses, threats, attacks and denial of
necessary medical care continue. Both respondents have
repeatedly refused to respond to the many requests for
protective control and AR5120-9-14 say a PC hearing has
to be held in 72 hours after the request but I never
had a PC hearing. Please see 5120-9-14 at Appendix C.
I filed a mandamus action in the Ohio Supreme Court
Case 14-1256 but I was showed judicial bias and it was
dismissed on frivolous grounds. I filed another
mandamus action and asked court to order Donald Morgan
to give me PC but he responded saying he is not the
insurer of inmate safety on page 5 of his motion to
dismiss. He never denied or refuted that these
inflictions of cruel and unusual punishment are
occuring. Please see p.3 of motion to dismiss. I’ve
filed grievances about the attacks and PC concerns to
no avail. And since the motion to dismiss was filed I
was almost stabbed on 2-13-15 and I had my face busted
and I was called a snitch and I had to get stiches in
my face. I filed grievances and complaints on this
also to no avail. Respondents are doing nothing to
protect me or to deter future acts of these kinds from
occuring. The grievances and medical records are
confidential and I ask this Court to issue a order
allowing me to file them under seal. I was told by
medical staff that I can’t get the medical records
unless they are court ordered. I ask this Court to
order the records in the interest of justice. I also
ask this Court to order the video evidence of the 2-1315 incident in the interest of justice.
I am still being threatened and tortured.
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I am still
in imminent danger of being attacked. The respondents
are still showing deliberate indifference to these
attacks, tortures, threats and they are still
subjecting me to the deprivation of my 8th and 14th
amendment rights.
For the reasons stated above the respondents have
subjected me to the deprivation of my rights to be free
from cruel and unusual punishment being inflicted and
equal protection of the law which are secured by the
8th and 14th amends of US Const by showing me deliberate
indifference to the attacks, abuses, threats, tortures
by staff and inmates and the denial of necessary
medical care.
Although the motion is unopposed, for the following reasons the
Court will recommend that it be denied on grounds of futility.
First, to the extent that Mr. Chappell is attempting to
state a claim by alleging that defendants failed to comply with
administrative policies relating to protective custody hearings,
his claim must fail.
An alleged failure to comply with an
administrative rule or policy does not rise to the level of a
constitutional violation.
(6th Cir. 2007).
Laney v. Farley, 501 F.3d 577, 581 n.2
Further, to the extent that Mr. Chappell is
suggesting that the defendants violated his rights by
disregarding his grievances, he has no constitutional right to a
prison grievance procedure.
Young v. Gundy, 30 Fed.Appx. 568,
569-70 (6th Cir. 2002); LaFlame v. Montgomery County Sheriff’s
Department, 3 Fed.Appx. 346, 348 (6th Cir. 2001).
Further, there
is no liability where officials’ only involvement is deny
administrative grievances and to fail to remedy alleged behavior
or intervene on an inmate’s behalf.
Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999).
Additionally, to the extent that Mr. Chappell may be
attempting to assert an Eighth Amendment claim either based on
the denial of medical care or the failure to keep him safe, his
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allegations do not set forth the personal involvement of either
defendant.
Rather, this claim also appears directed to the
defendants solely as a result of their supervisory positions, and
it is similarly lacking in the necessary detail to survive a
motion to dismiss.
VI.
Remaining Motions
The parties have filed several additional motions.
In light
of the recommendations set forth above, the Court will deny all
remaining motions as moot.
VII.
Recommendation and Order
For the reasons stated above, it is recommended that the
motion for judgment on the pleadings (Doc. 41) be granted.
It is
further recommended that the motion for preliminary injunction
(Doc. 31) be denied.
The motion for leave to amend (Doc. 47) is
denied for the reasons set forth above.
Further, the following
motions are denied as moot: motion for service (Doc. 14); motion
for protection custody (Doc. 15); motion for protection (Doc.
23); motion to appoint counsel (Doc. 24); motion for copy of
amended complaint(Doc. 30); motion to stay discovery (Doc. 42);
and motion to compel discovery (Doc. 45).
PROCEDURE ON OBJECTIONS TO THE REPORT AND RECOMMENDATION
If any party objects to the Report and Recommendation on the
motion for judgment on the pleadings and motion for preliminary
injunction, that party may, within fourteen days of the date of
this Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which
objection is made, together with supporting authority for the
objection(s).
A judge of this Court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.
Upon proper objections, a judge of this Court may accept, reject,
or modify, in whole or in part, the findings or recommendations
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made herein, may receive further evidence or may recommit this
matter to the magistrate judge with instructions.
28 U.S.C.
§636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
MOTION FOR RECONSIDERATION OF THE ORDER
If any party objects to the remainder of this order, that
party may, within fourteen days after this Order is filed, file
and serve on the opposing party a motion for reconsideration by a
District Judge.
28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R.
Civ. P.; Eastern Division Order No. 14-01, pt. IV(C)(3)(a).
The
motion must specifically designate the order or part in question
and the basis for any objection.
Responses to objections are due
fourteen days after objections are filed and replies by the
objecting party are due seven days thereafter.
The District
Judge, upon consideration of the motion, shall set aside any part
of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.
S.D. Ohio L.R. 72.3.
/s/Terence P. Kemp
United States Magistrate Judge
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